Thompson v. State

Decision Date01 January 1875
Citation43 Tex. 583
CourtTexas Supreme Court


APPEAL from Lamar. Tried below before the Hon. J. Q. Chenoweth, Judge of the Criminal Court of Paris.

George Thompson was indicted for an assault with intent to commit a rape.

The statement of facts shows that defendant entered the room of a white woman, a domestic, about ten o'clock at night; was seen by her and a little girl sleeping with her; when first noticed, he was standing by the bed-side, with his hand upon the person of the domestic. She woke up the girl sleeping with her--pulled up the bed-clothes--was too much frightened to scream, when defendant immediately left the room, when the alarm was given. In another bed in the same room slept three little girls, and across a hall and near the room slept others of the family.

Defendant was convicted, and his punishment fixed at five years in the penitentiary.

Johnson & Minor, for appellant.

A. J. Peeler, Assistant Attorney General, for the State.


The evidence in this case most obviously does not warrant the verdict found by the jury. There is nothing in the facts or circumstances disclosed in the record from which it can be justly inferred that appellant committed an assault with intent to commit rape, (Crim. Code, art. 494,) or that the offense of rape, though not committed, was attempted by the use of force, threats, or fraud. (Crim. Code, arts. 524, 525, 526, 530.)

The offense defined in article 494 is consummated when an assault is made upon a woman with intent and purpose to commit the offense of rape, though the force and violence used in making the assault may not have equaled that required for the commission of the offense. (Crim. Code, art. 524.) If the assault is made with the unlawful intent the offense is complete, although the offender, from fear, resistance, or other cause, may have abandoned his purpose without resort to the greater force which he designed using, if necessary, to accomplish the intent with which he made the assault, while, to maintain an indictment, under art. 530 it must be shown that there was an attempt to commit a rape by force, threats, or fraud. And this force, as defined by the code, “must have been such as might reasonably be supposed sufficient to overcome resistance, taking into consideration the relative strength of the parties and other circumstances of the case.” (Crim. Code, art. 524.)

Unquestionably it cannot be said that appellant is...

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13 cases
  • Miller v. State
    • United States
    • Texas Court of Criminal Appeals
    • 23 Octubre 1912
    ...will, is an aggravated assault, and, if the man were not an adult, it would be simple assault. Pefferling v. State, 40 Tex. 486; Thompson v. State, 43 Tex. 583; Curry v. State, 4 Tex. App. 574; Ridout v. State, 6 Tex. App. 249; Hemanus v. State, 7 Tex. App. 372; Atkins v. State, 11 Tex. App......
  • Linville v. Green
    • United States
    • Kansas Court of Appeals
    • 6 Mayo 1907
    ... ... 1 Bishop's Crim. Law (7 Ed.), ... sec. 786; 20 Am. and Eng. Ency. Law (2 Ed.), pp. 603, 605; R ... S. 1899, sec. 2361; State v. White, 35 Mo. 500; ... State v. Scott, 172 Mo. 545. (2) The evidence of ... plaintiff, however, was too improbable, too inherently weak, ... 52 Mo.App. 287; State v. Fulkerson, 97 Mo.App. 599; ... State v. Scholl, 130 Mo. 401; Goodman v ... State, 60 Ga. 509; Thompson v. State, 43 Tex ... 583; Commonwealth v. McKie, 67 Mass. 61; 2 Am. and ... Eng. Ency. Law (2 Ed.), page 975, and numerous authorities ... ...
  • State v. Fulkerson
    • United States
    • Missouri Court of Appeals
    • 5 Enero 1903
    ...and battery for a man to put his arm licentiously, though tenderly, about the neck of a woman against her will." See, also, Thompson v. State, 43 Tex. 583, and Com. v. McKie, 67 Mass. 61, 61 Am. Dec. It is claimed that the court committed error in allowing defendant's photograph to be submi......
  • State v. Gibbs
    • United States
    • Idaho Supreme Court
    • 17 Diciembre 1894
    ... ... taken as a whole proves only an aggravated assault ... (Commonwealth v. Merrill (Mass.), 14 Gray, 415; ... Thomas v. State, 16 Tex. App. 535; Christian v ... Commonwealth (Va.), 23 Gratt. 954; Commonwealth v ... Fields, 4 Leigh, 468; Thompson v. State, 43 ... Tex. 583; Saddler v. State, 12 Tex. App. 194; ... Sanford v. State, 12 Tex. App. 196; State v ... Neely, 74 N.C. 425, 21 Am. Rep. 496; State v. Massey, 86 ... N.C. 650, 41 Am. Rep. 478.) ... George ... M. Parsons, Attorney General, for State ... It does ... ...
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